Rojadirecta Argues That The Justice Department Is Making Up Laws; Has No Legal Basis To Forfeit Its Domain

from the well-argued dept

Late Friday, Puerto 80, the company behind Rojadirecta, filed its motion to dismiss (pdf) the attempt to forfeit the two domains rojadirecta.org and rojadirecta.com. Because people get confused, a quick explanation is in order: the government already seized the domains, which is a temporary process, but it is now trying to forfeit them permanently, which involves a separate (though similar) process. The part we wrote about on Friday, in which the court refused to give back the domains, was more in dealing with the seizure. Now we've moved on to the discussion over forfeiture.

The argument put forth in the latest filing is actually quite specific and technical, but seems extremely compelling. In simplified form, it is that the Justice Department is making up a law that doesn't exist. More specifically, the argument is that the Justice Department is playing a bit of a game with the law here. It fails to allege the specific conditions necessary to prevail under the law it claims to be using -- and even admits that it fails on those key points. Instead, it appears to be trying to rely on the standards from a different law, which quite clearly in the law cannot be used for this kind of action. Separately, in a bit of a surprise, Puerto 80 does not even raise the First Amendment issue, though I have a theory as to why, which I'll explain later.

The details are a bit technical, so let's dive in. I will say, first off, that what's being argued over here is pretty technical, and trying to reduce it down to a simple "but of course it infringes!" is meaningless for a variety of reasons. I would hope that we can have this debate actually focus on the specifics of the argument, rather than a back and forth using broad brush strokes unrelated to the specifics of this case.

As for the specifics, in order to seize the domain, the government argued it had probable cause that these domains were property used for criminal copyright infringement. Criminal copyright infringement has some very specific hurdles that need to be met, as we've discussed before, found in section 506 of US Copyright law. For this particular case the factors that matter are that the government must show that Rojadirecta willfully directly infringed (by reproduction or distribution of) the copyrighted works of others which have a value of $1,000 or more, for the purpose of commercial advantage or financial gain. There are a few other factors related to criminal copyright infringement, but they simply are not relevant here, so we will ignore them.

The problem with the government's attempt to forfeit these domains is that it completely fails to allege a rather key component required under section 506: that Rojadirecta directly infringed on anyone's copyrights. Instead, it only alleges that it was involved in indirect infringement by linking to content hosted elsewhere. Again, for the sake of clarity, direct copyright infringement occurs when the specific party is actually copying or distributing the content itself. There are, however, a number of different forms of indirect copyright infringement, including contributory infringement, vicarious infringement and inducement. However, those are only found in civil copyright law and are not found in criminal copyright. Furthermore, no court can simply say that because they're in civil copyright law, they also appear in criminal copyright law, because criminal copyright law has to be specific in the statute, not driven by common law principles, as is the case with indirect infringement in civil copyright law.

What's amazing is that the government more or less concedes this point, by never even arguing that Rojadirecta directly infringed anyone's copyright, pointing only to the fact that it linked to works on other servers. The filing goes through a long list of case law that shows it is extremely well-established in the law that, at best linking can only be indirect infringement, and even then the barrier is quite high:

Because Puerto 80 did not copy anything, it cannot be found liable for direct
infringement by virtue of hosting links to content. This is a firmly established legal proposition
that has been affirmed time and time again by many courts. See CoStar Group, Inc. v. LoopNet,
Inc., 373 F.3d 544, 546 (4th Cir. 2004) (“Because LoopNet, as an Internet service provider, is
simply the owner and manager of a system used by others who are violating CoStar’s copyrights
and is not an actual duplicator itself, it is not directly liable for copyright infringement.”)
(emphasis in original). Accord Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 717 (9th Cir.
2007) (party from whose site content is actually transmitted and subsequently displayed on the
end-user’s screen is responsible for display, not search engine that merely links to that content);
Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195, 1202 n.12 (N.D. Cal. 2004)
(“hyperlinking per se does not constitute direct copyright infringement because there is no
copying.”); Arista Records, Inc. v. MP3Board, Inc., No. 00 CIV. 4660(SHS), 2002 WL 1997918,
at *4 (S.D.N.Y. Aug. 29, 2002) (linking to content does not implicate distribution right and thus,
does not give rise to liability for direct copyright infringement); Ticketmaster Corp. v.
Tickets.com, Inc., 54 U.S.P.Q.2d 1344, 1346 (C.D. Cal. 2000) (“[H]yperlinking does not itself
involve a [direct] violation of the Copyright Act (whatever it may do for other claims) since no
copying is involved. . . . [It] is analogous to using a library’s card index to get reference to
particular items, albeit faster and more efficiently.”); Bernstein v. JC Penney, Inc., No. 98-2958
R EX, 1998 WL 906644, at *1 (C.D. Cal. Sept. 29, 1998) (granting motion to dismiss on the
ground that hyperlinking cannot constitute direct infringement).

To further prove this point, the filing notes that if linking to copyrighted material existing elsewhere on the internet alone constituted direct copyright infringement, nearly every website online would be guilty, "including websites hosted by the Department of Justice and the White House," and then shows where both include links to others' works. On top of that, it points to the Justice Department's own manual on Prosecuting Intellectual Property Crimes and notes that it only discusses direct copying, and never mentions any secondary or indirect copyright infringement issues as being applicable.

Even more damning, the filing points to both COICA and PROTECT IP, which try to establish some form of criminal secondary liability as evidence that even Congress knows existing copyright law has no such thing.

The standard response from those who support these efforts to seize and forfeit domains is that indirect infringement, or secondary liability claims, can work. However, this fails also, and shows where the government is either trying to make up a law that doesn't exist, or is playing a quick game of switcheroo between laws to try to get what it wants. As explained above, none of the secondary liability concepts found in civil copyright law are found in criminal copyright law. Supporters of these procedures always try to get around this by leaping over to "aiding and abetting" laws, which can be used in relation to copyright under certain specific circumstances (with a pretty high bar). However there are two massive problems with this: (1) the government never alleges aiding and abetting in its complaint. And there's a good reason for that: because the laws on forfeiture do not allow forfeiture for aiding and abetting.

Let that sink in a bit. Because it basically undermines the entire case. In simplified form: for forfeiture to be allowed, the government must show direct copyright infringement. And yet, it does not even try to. Instead, it seems to allege criminal secondary or indirect infringement, which does not exist in the law. For those who try to ignore the fact that there is no such thing as indirect infringement in criminal copyright law, and who argue that it's the same thing as "aiding and abetting," that argument fails equally, because the government did not allege aiding and abetting in its forfeiture claim... and that's because forfeitures are not allowed for aiding and abetting.

At this point, the only way the government wins is if the court either does not understand what the law actually says, or effectively pretends that the Justice Department's made up law exists, which it is expressly not allowed to do.

Separately, Puerto 80 points out that the government cannot and does not show "willful" infringement (which is necessary to allege criminal infringement), in part because of the two rulings in Spain that found Rojadirecta legal in its home country. Now, many have tried to argue that the rulings in Spain do not matter, because this is about US copyright law. And that is true to a certain extent. However, it is extremely relevant for presenting any evidence of willfulness. A court would have to be convinced that the folks behind Rojadirecta somehow purposely set up a system that they knew was legal in Spain, while specifically willfully violating US copyright law. That seems like a massive hurdle (though perhaps less massive than the issue above of direct/indirect liability in criminal copyright law). Separately, the filing points out that the government makes no actual showing of willfulness (even unrelated to the Spanish rulings), merely noting that the ICE agent downloaded works that were covered by copyright. And yet (again) the case law is clear that just knowing of infringement is not enough to show willfulness, or (as the courts have held) it "would turn every copyright claim into willful infringement."

Finally, Puerto 80 argues that US copyright law can only be applied to infringement acts that occur in the US, and points to a fun case we discussed earlier this year, alleging infringement on the song Grandma Got Run Over By A Reindeer. In that case, a Canadian resident uploaded a video with that song in Canada, and the court found that the defendant could not be sued in the US, even though the video was available in the US. This is a problem for the government's case:

Rojadirecta’s content (i.e., its links and discussion forums) is stored on servers residing outside the United States. Compl. ¶ 14(f) (alleging that the
domain names are hosted on a server in Canada). There is no allegation that Puerto 80 operates
its site from within the U.S., and indeed the Complaint appears to acknowledge that the
Rojadirecta site is based in Spain.... The government accessed the links which
directed them to the allegedly infringing material by visiting a site hosted outside the United
States. Thus, each step of the process occurs outside the United States, and any material that
Puerto 80 has control over resides on serves outside the United States. Therefore, no act of
infringement by Puerto 80 has taken place in the United States. Accord Perfect 10, Inc. v.
Amazon.com, Inc., 487 F.3d 701, 718-19 (9th Cir. 2007) (copying (and therefore infringement)
occurs when material is stored on server).

Not surprisingly, I find that this filing is really quite compelling and strong. I don't see how a judge who actually understands the filing can rule against Puerto 80 in this case.

Now, as for the surprise that First Amendment issues aren't being raised at all in the filing (especially since the judge on Friday specifically noted that Puerto 80 could raise such issues in this very filing). The only thing I can figure is that since this is the lawsuit over forfeiture, rather than the seizure, the First Amendment issue is moot. That is, prior restraint only occurs when there's a restriction on speech before it's deemed illegal. At this stage of the legal fight, they're arguing over whether or not the speech is legal or not, so there's no First Amendment issue to be argued. But, even then I'm not entirely sure, since even the judge suggested the First Amendment issues could be raised at this stage of the game. Either way, I'm surprised.

No matter what, this case is certainly one to follow closely. When the government replies, we'll go through that as well...

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because wasting time on pointless lawsuits looks stupid to the average person.

A cynical person might point out, that with an election cycle coming up, being able to show we care about you deep pocket corporations and are willing to do whatever it takes to make you happy might be done to make sure war chests are filled.

Laws are only for little people, not for your corporate persons to worry about. We will prop up your business model at the expense of the rule of law, because we care about you.

For this particular case the factors that matter are that the government must show that Rojadirecta willfully directly infringed (by reproduction or distribution of) the copyrighted works of others which have a value of $1,000 or more, for the purpose of commercial advantage or financial gain.

This is where I disagree. The government doesn't have to show that the owners of Rojadirecta directly infringed. The government only need show that someone directly infringed using Rojadirecta's property. Remember that the forfeiture statute allows for the forfeiture of property used to commit criminal infringement. There's no need for the infringer to be the same party as the owner of property.

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The government only need show that someone directly infringed using Rojadirecta's property.

That kinda fails also. If the infringed material resides on some other 3rd party server then the infringement isn't through Rojadirecta's property at all. At the point it's a transaction between the 3rd party server and the user, completely outside of Rojadirecta.

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That's the aiding and abetting argument. Which, as noted, does not allow forfeiture.

But whether Rojadirecta is a direct infringer or an aider and abettor doesn't matter, since either way the domain name is still property used to commit criminal infringement.

And I think it's important to note too that the owners of Rojadirecta are not charged with any crimes. It's not about whether they are criminals. It's about whether their property is used to commit crimes.

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Except that their property was not used to commit direct infringement. It was used to commit, at worst, indirect infringement via linking. They would have to be hosting the content for direct infringement to have have a chance of applying.

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Except that their property was not used to commit direct infringement. It was used to commit, at worst, indirect infringement via linking. They would have to be hosting the content for direct infringement to have have a chance of applying.

That's a good argument, but I don't think I buy it. The role of the website in the direct infringement is substantial. Even if the owners of Rojadirecta are just aiders and abettors, the direct infringers are still "using" their property commit their crimes. It's like if I own a warehouse that I knowingly loan to gangsters who use it to murder snitches. My warehouse can be forfeited even though I'm not the murderer.

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But, the infringers are NOT "using" Rojadirecta's property for the actual infringement, so the Government needs to prove direct infringement on Rojadirecta's part.

But there is a strong nexus between the website and the crime because the website organizes things for the criminals. Even if the crime takes place elsewhere, that doesn't mean that the website isn't used "in any manner or part" to commit the crime.

Using your warehouse analogy, Rojadirecta would be the phonebook listing your warehouse's address.

I was thinking that Rojadirecta was the warehouse, but now I see the problem with that analogy. I blew that one. :)

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But there is a strong nexus between the website and the crime because the website organizes things for the criminals. Even if the crime takes place elsewhere, that doesn't mean that the website isn't used "in any manner or part" to commit the crime.

I do understand what you are saying here. It kind of scares me a little bit - that's a big can of worms there.

Would such a precedent make phonebooks liable for listing pawn shops that fence stolen goods? Would it make every search engine on the internet liable for every website it lists? What about catalogs that sell weapons? These are all entities that organize things for criminals and are used in part to commit crimes.

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And what really kills them is the word "facilitates" in the statute. Even if Rojadirecta can successfully argue that no direct infringement occurs on their website (which I think they can), they have a much steeper hill to climb in arguing that their website doesn't "facilitate" the direct infringement that occurs elsewhere. That's sort of the whole point of their website.

Would such a precedent make phonebooks liable for listing pawn shops that fence stolen goods? Would it make every search engine on the internet liable for every website it lists? What about catalogs that sell weapons? These are all entities that organize things for criminals and are used in part to commit crimes.

Those sound like hypos from my criminal law class. I think the problem for Rojadirecta is that they aren't just like a generic phone book, search engine, or catalog. They're a very specific type of directory that lists links to infringing works.

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Are your examples reasonable?

No, probably not.

But then again, I don't feel that holding Rojadirecta responsible for transactions between two other completely separate entities is very reasonable either, mainly because it could be become a thread to unravel the internet with.

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Yes, indirect copyright infringement is exactly like murder.

I fear you don't understand how analogies work. I wasn't saying that copyright infringement is exactly like murder. My point was that property can be seized even it belongs to someone other than the direct criminal.

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But murder does come from the original Trespass of Person laws, like how Assault is trespass of the person, and Copyright Infringement is in its basic form a trespass of property rights..

;)

Though I agree Murder or any Personal violence offence has absolutely nothing to do with any form of IP laws, in fact I'd go so far as to say that the standard criminal offences of property and person should NEVER ever be compared to IP and that especially includes larceny.

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It's like if I own a warehouse that I knowingly loan to gangsters who use it to murder snitches

And, if the government could prove that you knew they were "gangsters" and you knew they were going to murder people, and you knew about this happening and it continued, and you received some sort of consideration for the loan of the property, then yes, you could forfeit your property.

This is because there are laws that join everything together so that if property can be shown to be "the result of criminal activity" (not just used in it...the asset forfeiture laws say that the property must be the result of a crime...even as little as just one payment on a car), then it can be forfeit.

But, since Rojadirecta has not violated a single US law, their property cannot be forfeit, even if that property was "used" by someone else to commit a crime. And, even if Rojadirecta did violate some US law, it's not one that can ever end up being connected to the forfeiture statutes. Last, if someone else committing a crime would allow forfeiture, the Justice Department still hasn't proven that anyone has broken any US law.

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The problem is that the statute defines it quite broadly: "Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of" criminal infringement. I think the website plays a significant role in the direct infringement, even if technically, the direct infringement doesn't happen on their website. And that significant role would mean that it's property used "in any manner or part to commit" the crime. It's a good argument though, and I would definitely use it.

Reading the statute again just now, I realize something that I've missed before. I've been thinking that the government didn't have any evidence that any crimes were actually being committed. But now I see that the statute provides for forfeiture of property that is "intended to be used" for committing criminal infringement. That's way different than actually having to show that there's been a crime. Gotta think about that one...

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Think jurisdiction. None of the 'alleged' infringement took place in the US of A.

That part of the government's theory is questionable. They haven't shown that there actually was any infringement using the site, except for their own downloads, which I'm not sure count. The forfeiture statute allows for property to be forfeited if it is used to facilitate crimes, or if it's intended to be used to facilitate crimes. So even if they can't show that it actually is used to facilitate infringement, they can probably show that it's intended for that purpose. My problem with that, though, is that I don't think they can easily show it's intended to facilitate criminal infringement. And part of the difficulty is what you mentioned: To be criminal in the U.S., one of the actors has to be in the U.S. If I'm in Spain streaming a soccer match from Estonia using Rojadirecta's website, and the copyright holder is American, U.S. copyright law hasn't been violated.

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"intended to be used"

What?

WHAT!

WOW!

That is so ambiguous with so much ability to have chilling effect on so much it is more than scary. Not having looked recently is there any caveats? Do bench books show the defining usage of "intended" in this context?

Because if they don't it can mean that anyone who the US Govt has reason to believe would in all likelihood use something, anything, to wilfully (which basically means with intent) to commit any form of Infringement for financial gain, now or in future, that property whether OWNED by them or someone else anywhere in the world could be forfeited.

I hope it has restrictions on the definition because otherwise them there's fightin' words, and could be in certain situations act of war words, since it overrides sovereign laws elsewhere

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That is so ambiguous with so much ability to have chilling effect on so much it is more than scary. Not having looked recently is there any caveats? Do bench books show the defining usage of "intended" in this context?

Property subject to forfeiture. - The following property is subject to forfeiture to the United States Government:
(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title.
(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A).
(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A).

Note that it specifies that the infringing materials must be "article[s], the making or trafficking of which is, prohibited."

Clearly, the seizure statute was explicitly designed to be used against those who sold counterfeit goods. Especially when you compare it to the other statutes that these seizures apply to. It was not meant to be used against other types of copyright infringement.

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Note that it specifies that the infringing materials must be "article[s], the making or trafficking of which is, prohibited."

But "any article" only applies to part (A). Part (B) is the one at issue here, and it applies to "any property."

Clearly, the seizure statute was explicitly designed to be used against those who sold counterfeit goods. Especially when you compare it to the other statutes that these seizures apply to. It was not meant to be used against other types of copyright infringement.

If it was only meant to be used against those who sold counterfeit goods, then why it clearly written to include "any property used, or intended to be used, in any manner or part to commit or facilitate the commission of" criminal copyright infringement. Congress could have limited it to just counterfeit goods if they wanted to, but clearly they did not.

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But "any article" only applies to part (A). Part (B) is the one at issue here, and it applies to "any property."

No, Part (B) refers to any property used in "the commission of an offense referred to in subparagraph (A)."

Note that I'm not saying a domain name could not be considered property to be seized under this law (though I have other legal problems with that). I'm saying that the original infringement should involve counterfeit goods, as the law clearly intended.

Applying it to infringing performances would be if the government finds a club that doesn't pay its dues to ASCAP, and seizes the entire P.A. I've never heard of this happening, ever.

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No, Part (B) refers to any property used in "the commission of an offense referred to in subparagraph (A)."

How's that different than what I said? Part A lists the offenses, including 506, and Part B says it applies to "any property" used to commit the offenses in Part A, including 506. Slice any way you want, but your argument that Congress only meant counterfeit goods has no basis in the text of the statute.

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Part B creates the obligation that 'any property' used to commit specific offences in part A.

Though part A Explicitly states that those offences can ONLY be used in conjunction with an actual ARTICLE.

Think of it as these elements must be met.

* There must be an ARTICLE that is MANUFACTURED or TRAFFICKED
* There must be a PROHIBITION under specific sections for that article to be made or trafficked
* There must be some sort of property involved in the commission of the article being made or trafficked

If all the above elements are correct and provable then the property may be forfeited. Note that I haven't touched on subparagraph C, which is ambiguous but still pertains to the above elements.

The main crux that needs to be ascertained is what exactly is an Article. Is it something that is both physical and tangible, or can it be intangible as in the allocation of electrons in certain patterns to form information that can not be touched, seen, or destroyed in a physical environment (ie: Digital audio, Digital Film, Digital Imagery, Digital environment [Second Life])

I would, from the wording of the statute, take an educated guess that as the article needs to be able to be manufactured then it is more likely than not to be a physical good only. Therefore as Karl states counterfeit goods that can be purchased in the physical world and held. Even if they contain Digital structures like in the case of DVD's or CD's they are still a Physical medium.

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With all due respect, this interpretation is incorrect.

(B) applies to "an offense referred to in subparagraph (A)".

The offenses referred to in (A) include 506 (criminal copyright infringement), 2318 (Trafficking in counterfeit labels, illicit labels, or counterfeit documentation or packaging), 2319A (Unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances), etc.

So if you substitute those into the language of (B), you get:

"Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of [criminal copyright infringement; trafficking in counterfeit labels, illicit labels, or counterfeit documentation or packaging; unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances; etc.]"

In other words, there is no requirement that the property in (B) is limited to that which is used to make physical articles.

This is the intended interpretation of Congress. It's supported further when you realize that the subsections (A), (B), and (C) correspond to the classic categories of forfeitable property: contraband, instrumentalities or tools, and proceeds or fruits.

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Thanks Terry and you are absolutely correct, and I will now virtually fall on my "sword of reading & comprehension failure"

This is what happens when you are multi-tasking a wide array of threads over multiple days whilst trying to also do real Time work as well, as well as being in a time zone that is a day earlier than yours.

The congressional interpretation makes sense too in regards to the ambiguity of SubPara (C) now as well.

Though I have a sneaking suspicion (not having read the notes etc) that 2319A was added in a hurry and the original intention was about tangible goods/real property.

Just had a quick skim through of CopyHype... well put together, will read more over weekend.

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Any property, used in any manner or part, to commit criminal copyright infringement? What might that include? A highway, used to transport infringing goods. An electric power company, if it's electricity had been used. An apartment building, used by a tenant as a place to infringe. A telephone company whose lines were used to carry infringing material. Even an ISP, if it had been so used. Infringing goods can touch all of those. But, not Rojadirecta because it doesn't host, transport or otherwise even touch infringing material.

In other words, a whole lot of property _other_ than Rojadirecta's could be seized under that law. Yet, Rojadirecta is the one with it's property getting seized and _not_ the others. Funny, that, huh?

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So if you substitute those into the language of (B), you get:

You're not correct. If you substitute the relevant statutes, you get:

any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title.]"

In other words, there is absolutely a requirement that the property in (B) is limited to that which is used to make "articles," the "making or trafficking" of which is forbidden.

You know, you used to actually like the law. What turned you into such an abject liar? I'm kind of curious.

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Sorry, this is embarrassing. The relevant (combined) statute is:

Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of[:] any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title.

While I stand by my analysis, I incorrectly cited my sources. My apologies.

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Sorry, this is embarrassing. The relevant (combined) statute is:

Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of[:] any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title.

While I stand by my analysis, I incorrectly cited my sources. My apologies.

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Okay, once again I apologize. I had been drinking when I tried to post that.

Re-reading the statute, it explicitly states "an offense referred to in subparagraph (A)." I had assumed that this meant property used to "commit or facilitate" the "making or trafficking" of "any article." But since (A) is not in itself an "offense," but a category of property, "offense" must refer to the statutes (506, 2318, etc.), not the "article," just as you said. So, I was wrong about that.

And I also want to apologize for calling you a liar. That was uncalled for.

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ThanksKarl, that makes a lot more sense and sets it ut a lot clearer with specificity.

Though what determines an 'article' is the main sticking point I'd suppose. is an article Real tangible property or can it be percieved as intangible goods/services as well. A layperson would reasonably make an assumption as to the former, though it seems reasonableness has died a thousand cuts in this debarcle.

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It's not about whether they are criminals. It's about whether their property is used to commit crimes.

Right. But, forfeiture isn't allowed for aiding or abetting or conspiracy. So it would have to have to be forfeited on the idea that Rojadirecta was directly infringing, which they weren't because they didn't host the infringing material.

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Right. But, forfeiture isn't allowed for aiding or abetting or conspiracy. So it would have to have to be forfeited on the idea that Rojadirecta was directly infringing, which they weren't because they didn't host the infringing material.

It's forfeited on the idea that the website exists to facilitate the direct infringement of others.

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The .es. ccTLD is registered in the IANA root zone ".", administered under Department of Commerce contract by ICANN, a California non-profit corporation.

Are you saying that the entire .es ccTLD, and all websites in that ccTLD are subject to U.S. law?

What about the .ir ccTLD?

My understanding is that according to ICANN rules, when you register a domain name with a registrar in a certain country, you must agree to not only abide by ICANN rules, but by the laws of that country you registered in as well. So if you register in the U.S., you are agreeing to be subject to U.S. laws vis-a-vis your domain name.

If you register a .es TLD, I doubt you are agreeing to be subject to the laws of the U.S. I don't see how the fact that the party you contracted with may have contracted with the U.S. would change your jurisdictional situation since there's no privity.

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Does it cover material hosted on your website, located via that domain name? If it does, then why isn't it also transitive to DNS sub-domains, such as the whole .es hierarchy?

I see what you're asking, but I don't think it works like that. You only contracted for your specific domain name, e.g., rojadirecta.es. If the registrar you contracted with that handles the .es TLD happens to contract for different domain names under the .es TLD, or happens to contract with someone in the U.S., I don't see how that makes you subject to U.S. law. I may not understand your question though. I have been drinking. :)

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My understanding is that according to ICANN rules, when you register a domain name with a registrar in a certain country, you must agree to not only abide by ICANN rules, but by the laws of that country you registered in as well.

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"3.7.7.10 For the adjudication of disputes concerning or arising from use of the Registered Name, the Registered Name Holder shall submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (1) of the Registered Name Holder's domicile and (2) where Registrar is located."

But even if the Rojadirecta hadn't agreed to that when they signed up for their domain name, I think it's still property that's in the U.S. subject to U.S. law.

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This REGISTRAR ACCREDITATION AGREEMENT ("Agreement") is by and between the Internet Corporation for Assigned Names and Numbers, a California non-profit, public benefit corporation, and [Registrar Name], a [Organization type and jurisdiction] ("Registrar"), and shall be deemed made on ____________________, at Los Angeles, California, USA.

The agreement you exhibited is, on its face, a form agreement between ICANN and an unnamed Registrar.

You have not exhibited an agreement to which the Registrant is a party.

Nor have you exhibited any agreement to which the U.S. government is a party.

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I don't happen to have Rojadirecta's particular contract with their registrar. Do you?

No matter though. My read from the ICANN regulation that I linked to is that the registrars must include that in their agreements with people who register domain names. From that I assumed that Rojadirecta signed an agreement with such a clause. If you have evidence to the contrary, then do share.

I don't think it matters though since as I said, courts treat domain names as existing in the district where the registrar is situated. And that's something I can find lots of caselaw to support.

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Are you asserting that the domain name agreement is an agreement between Rojadirecta and the United States?

It was really just a side issue that I don't think really matters. My understanding was that, as indicated by the ICANN rule I quoted, when someone registers a domain name with a registrar in a certain country, say the U.S., then that registrant agrees that the laws of the U.S. will be applied to that domain name. In other words, it's property in the U.S. subject to U.S. law. I could certainly have this wrong, and I don't pretend to be any sort of expert on this issue. I also think it doesn't matter because even if the registrant didn't agree to be bound by the laws of the country where they registered the domain name, the courts may very well assume control over the domain name anyway. I'm not aware of anyone ever successfully arguing that their U.S.-registered domain name was not subject to U.S. laws. And frankly, the notion sounds silly to me.

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A Spanish national entered into a contract with an intermediate party to have particular database records published on particular servers in the United States.

At the government's request, a judge ordered the publishing company not to publish those records, and to instead publish different records.

Habitually, I use the published data from the global, IANA DNS system to republish records from my servers. But nothing obligates me to republish those database records. On my servers, I may publish different records—to fulfill the moral obligation which the United States government has breached.

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Then perhaps you should refrain from making claims about what's in it.

If everyone who signs up with a register makes that agreement, then it's a safe assumption that Rojadirecta also made that agreement. You don't know that they didn't. I know you feel the need to nitpick, but this is just silly.

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If everyone who signs up with a register makes that agreement...blah blah blah

You haven't shown that everyone does.

You argument reminds me of recent comment made here that went kind of like this, "You Honor, I would like to refer you to the case of Your Mom v. You, where it was shown that 'Because I said so' is sufficient to establish any set of facts'."

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It was a half-baked, half-researched argument, and I apologize if it's not to your liking. I could certainly be wrong, as I've said already above. Nonetheless, I still believe that Rojadirecta's domain names are property subject to U.S. law, and no one has shown otherwise.

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My understanding is that according to ICANN rules, when you register a domain name with a registrar in a certain country, you must agree to not only abide by ICANN rules, but by the laws of that country you registered in as well.

Registrars don't need to be located in the U.S. to have a .com or .net gTLD. You can get that if you're a registrar in Spain as well.

But ICE didn't go to the registrar. Didn't even contact them. They went to Verisign, who is not a registrar, but the operator of the entire .com and .net gTLD's.

They would be the equivalent of Afilias - who manages the .info gTLD, and also the .asia gTLD, reserved specifically for websites in the Pacific rim. Since Afilias is headquartered in Ireland, that means, by your theory, that those .asia websites must follow Irish laws.

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Registrars don't need to be located in the U.S. to have a .com or .net gTLD. You can get that if you're a registrar in Spain as well.

But ICE didn't go to the registrar. Didn't even contact them. They went to Verisign, who is not a registrar, but the operator of the entire .com and .net gTLD's.

They would be the equivalent of Afilias - who manages the .info gTLD, and also the .asia gTLD, reserved specifically for websites in the Pacific rim. Since Afilias is headquartered in Ireland, that means, by your theory, that those .asia websites must follow Irish laws.

That is pretty ridiculous.

You might be right about all that. But nonetheless, I don't see how Rojadirecta could win the argument that their domain names aren't "property" under the statute. Notice too that they're not even making this argument.

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The government will have to show that the domain names are property used or intended to be used to commit or facilitate the commission of criminal copyright infringement. The initial seizure was based on probable cause that it is such property. But you're right, they still have to show (by a preponderance of the evidence) that it actually is. It does seem a bit "cart before the horse," but things are seized everyday based on probable cause, with the trial to determine liability coming after the seizure.

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All direct infringement isn't even criminal. I mean as long as we're talking about the direct infringement of others a user would have to be in the US and they would have to be exceeding the minimums set by the statute for criminal infringement to apply. It gets back to an issue raised by an another article on this site, it's only criminal if you aggregate it across multiple users. So who's the infringer that's violating the statue?

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All direct infringement isn't even criminal. I mean as long as we're talking about the direct infringement of others a user would have to be in the US and they would have to be exceeding the minimums set by the statute for criminal infringement to apply. It gets back to an issue raised by an another article on this site, it's only criminal if you aggregate it across multiple users. So who's the infringer that's violating the statue?

That's a great question, and one that I think the government will have to answer. Even if the government can show that the website (and by extension, the domain name) is used to facilitate infringement, it still has to show that it facilitates criminal infringement. I think this could be a problem for the prosecution.

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"The government only need show that someone directly infringed using Rojadirecta's property. Remember that the forfeiture statute allows for the forfeiture of property used to commit criminal infringement. There's no need for the infringer to be the same party as the owner of property."

Then why is Google still in operation? All these websites were listed in Google, they were using Google's property to commit criminal infringement, why is Google not seized? I don't buy the "intent, or willful" argument, any more than the pro-ip people buy the first amendment argument for speech not deemed infringing on the website. If the DOJ is stating it's obvious that the website is infringing, how is it that it's not obvious to Google, Yahoo, etc....

If they (DOJ)want to go down this road, then don't half ass it. Bring down the entire pile of cards, not just the ones you think are week and/or defenseless. Anything else just leaves you open to question of favoritism and abuse.

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Because if a court order seizing google.com hit a judge's desk, Larry, Eric and Sergey would be hostile take-overing more companies than you count, and half of washington would lose their jobs. These guys are RICH.

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The government only need show that someone directly infringed using Rojadirecta's property.

Assuming for the sake of argument, that that is a fair statement of the law, your argument fails.

The government seized the NS record for the domain.

However, the government alleges that it is the links contained in the HTML on Rojadirecta's site that were used for infringment.

Look, the government says that someone is publishing an illegal newspaper: The illegal newspaper is reporting on crime! This illegal newspaper has a telephone with a paid phonebook listing. The government goes out and takes the paid phonebook listing and redirects it to a government office. When the newspaper's subscribers look up the telephone number in the phonebook, and use the listed number to make a call then they are forced to listen to a government announcement.

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This is where you are wrong, because the actual infringement did NOT occur on Rojadirecta's property! Rojadirecta simply provided a link and the actual infringement occurred on the host that was linked to. How is an ISP to know whether a link is infringing or not?

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This is where you are wrong, because the actual infringement did NOT occur on Rojadirecta's property! Rojadirecta simply provided a link and the actual infringement occurred on the host that was linked to. How is an ISP to know whether a link is infringing or not?

But Rojadirecta collected links to help others commit infringement. That means their website facilitates the crime.

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But Rojadirecta collected links to help others commit infringement. That means their website facilitates the crime.

Then so does Google. If I want to find something, all I need to do is go to Google and type "copyrighted.content torrent" and I'm there - top links will usually by TPB and IsoHunt, and I don't even need to use the searches on their websites, cause Google indexes it all. Same for Yahoo. And Bing. I don't see DOJ seizing those - or the millions of other sites that contain links to infringing content. It seems that the law is being applied to some sites and not others.

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But Rojadirecta collected links to help others commit infringement. That means their website facilitates the crime.

Small point to make.

Even if Rojadirecta did "collect" the links, they would only be "facilitating" the end users' viewing of infringing performances.

But unlike downloading, merely viewing an infringing performance is not copyright infringement, since you're not violating any of the rights enumerated in 17 USC 106.

In order for Rojadirecta to facilitate infringement of a performance right, they would have to facilitate the performance itself. They have not been accused of doing anything that would meet that standard. Their website does not provide a service for users to upload content to third party websites; encourage or reward users who do; or have any connection (other than the links themselves) to the sites that actually stream the content.

They are not "facilitating" any sort of infringement at all, much less criminal infringement.

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For them to even bring up "aiding and abetting" doesn't someone else have to actually be charged with a criminal offense? No other criminal charges have been brought regarding this, so what are they "aiding and abetting?"

Then, as you said, if there was a valid "aiding and abetting" claim, it wouldn't matter b/c the statute doesn't allow for forteiture for that crime.

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For them to even bring up "aiding and abetting" doesn't someone else have to actually be charged with a criminal offense? No other criminal charges have been brought regarding this, so what are they "aiding and abetting?"

Oddly enough, they don't have to charge anyone with the underlying crime in order to bring a forfeiture action.

Then, as you said, if there was a valid "aiding and abetting" claim, it wouldn't matter b/c the statute doesn't allow for forteiture for that crime.

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Nope. You're still confused. If linking is aiding and abetting, the most you could say is that a third party used their property to commit that crime, which once again doesn't qualify for forfeiture.

I'm often confused, but I don't think I'm confused about this one. The statute provides for the forfeiture of "any property used, or intended to be used, in any manner or part to commit or facilitate the commission of" criminal copyright infringement.

So the question is whether the Rojadirecta is "property used, or intended to be used, in any manner or part to commit or facilitate the commission" of the crime. Even if the crime occurs elsewhere, I think that the website "facilitates" that crime.

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Wait, so if I decide I'm going to commit a bank robbery, and I plan to use a rental car to commit the crime, the police can go to the car rental lot and seize their cars because they're "property used, or intended to be use, in any manner or part to commit or facilitate the commission" of the crime?

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According to the statute intent of the property owner does not come into it it seems, only the intent of the alleged criminal infringer.

I talked more about that above and its worrying that it seems mens rae of the actual property owner has no bearing on the matter for an allegation of the crime.

If there was physical property that was used in the commission of a specific crime, ie: a gun in a shooting then the gun would be taken and used in evidence until such time that it was not needed anymore, and then handed back to rightful owner otherwise (unless the item was illegal in and by itself). Though that is nothing like this where the Govt is basically using an imminent domain procedure to remove the item for all time.. though they are also using it themselves at moment for there own political and educational purposes (seen here at Rojadirecta.com [unless you have the mafiaafire redirector])

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therefore, so does Google for listing any and all web sites. they haven't had their web site seized, nor has any other search engine. they all provide links to sites, some of which can be used to download 'infringing content', some can be used to find links for the same type of downloads from those web sites. so, what are they guilty of?

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If they never charge anyone else with the 'criminal copyright infringement' part, how can they get away with charging Rojadirecta with 'providing a service that may be used in the act of someone looking for a way to commit criminal copyright infringement?

Analogies are fun.... Lets pretend that I read the ALL the IRS tax publications (estimated reading time per the IRS guidelines 3.5 years... but ignore the improbability), now after reading the tax rules, I craft 'legal' tax sheltering accounting methods that allow me to avoid all income tax. Is the IRS responsible for 'aiding and abetting' me in tax evasion by providing me with the existing legal framework that I 'worked around' (lets assume that everything I did was legal, however, when taken in whole, it still fit the definition of 'tax evasion' and the resulting charges)?

Is providing the means to do something the same as doing something? Is providing the knowledge and legal framework necessary to figure out how to work around the letter of the law the same as 'aiding and abetting' in the crime?

The answer of course is, if the government wants it to apply then it will apply, if they don't want to apply,then it won't apply. It all depends on who is involved in the case, and which side has the biggest lobby (because it's all about the size of your building's lobby, don't you know).

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Saying that individual actions are legal, but when taken together is then illegal, is not true. Any half-way decent lawyer would get you off scot free in that scenario.
I remember a comment on this site a few days ago. Someone said something along the lines of "even if your actions are legal, you can still be found guilty if your intentions are bad". Intentions don't actually matter, even if you're charged with "possessing drugs with intent to sell or supply", the key thing is the action of possessing drugs.
Here, in rojadirecta's case, is a whole chain of actions that are completely legal. Each and every action that takes place along that chain is legal.

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The government only need show that someone directly infringed using Rojadirecta's property.

Except that none of the Government's paperwork even make this claim. It's not claimed in the seizure warrant, it's not claimed in their opposition memorandum, it's not claimed in any of the other seizure warrants, and none of the people in ICE or the DOJ have stated such a claim either in public or in their Congressional testimony. Thus far, their claim rests entirely on the allegation that the seized sites were directly infringing.

So, in regards to this case, it's immaterial; the bench can only look at that arguments before it.

Furthermore, it would be very difficult to prove that the website was used in the commission of direct infringement, since none of the infringing material passed through their servers.

If anyone's sites were used to infringe, it would be the various streaming sites that actually hosted the content, not Rojadirecta. Notably, ICE did not go after those sites at all. Perhaps that's because those sites aren't directly infringing either. For example, one of the "cyberlocker" sites, Hotfile, was itself found not to be directly infringing in court. So, even if Rojadirecta's site was being used as "property" by someone like Hotfile, ICE still couldn't prove it was used in the commission of criminal infringement, since Hotfile itself isn't committing criminal infringement.

I'm guessing ICE didn't raise this argument because they knew they'd lose. Then again, that seems to me to be the case with their entire argument. We'll find out, I suppose.

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I'd also like to point something else out. The sites that Rojadirecta linked to, did not offer downloads of any content; they offered streams of that content.

The 106 right that would be infringed, therefore, is the "public performance" right.

The problem? Infringing on the public performance right cannot be criminal infringement. Only "reproduction and distribution" are criminal. That's why the anti-streaming bill is in Congress in the first place (and has not passed).

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The problem? Infringing on the public performance right cannot be criminal infringement. Only "reproduction and distribution" are criminal. That's why the anti-streaming bill is in Congress in the first place (and has not passed).

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If it is a felony, it still has no situation in this case since it is not part of the claims brought forward.

I suppose they could re-charge under this, though to do this they would then have to acknowledge that they were wrong in first place and RETURN all property, then go through the motions again. Though this time they would be up against forewarned and knowledgeable defendant, with the prosecution facing the embarrassment of being shown to be incompetent.

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I believe infringing the public performance right has been a crime since 1897

Only under certain circumstances.

If the infringement were to be criminal, it would either have to be a "reproduction or distribution" (506(B) and (c)) which leaves out Rojadirecta, and the streaming sites, altogether; or the primary infringement (that is, the users' infringement) would have to be done "for purposes of commercial advantage or private financial gain" (506(A)), and furthermore the users would have to have "willfully" infringed.

Even if that could be proven, the maximum penalty that could occur, even with repeated infringements, would be a misdemeanor (Sec. 2319(b)(3)), since 2319(b)(1) and (2) specify that it must be a "reproduction or distribution" or that "the offense is a felony," respectively.

In addition, it's unlikely that ICE could seize anything related to the violation of a performance right, since Sec. 2323(a)(1)(A) specifies that it must be an "article, the making or trafficking of which" is infringing. That seems to specify that it must be "reproduction or distribution" as well, since a performance isn't an "article" that can be "trafficked."

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Reading comprehension problems? The comment was that the supposed source for that claim wasn't authoritative.

I read just fine. Look, I know this is the internet, but there's no reason for you to be an asshole. Would I cite to that .pdf in a court document? No. This is the comment section of techdirt. It's not easy to find a link to the 1897 Copyright Act, so I went with that. It proved my point sufficiently under the circumstances, and if more proof is needed, then I invite the reader to go look it up himself. But give me a break with your childishness.

You mean a link to an online PDF of unknown providence on some personal website. Of course not, because it's not reliable. "Wait a minute, Your Honor, I've got the evidence for that right here in this PDF, or I will just as soon as I whip it up." Right.

It proved my point sufficiently under the circumstances, and if more proof is needed, then I invite the reader to go look it up himself.

If you want to make the claim, I suggest you be the one to supply a credible citation. It's not up to everyone else to disprove your claim.

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That citation was fine given the circumstances. The fact that you're demanding more proof that the 1897 Copyright Act made violating the performance right a crime is hilarious.

Let's look at that citation a little more closely, shall we?

The referenced document is on the personal website of one Jesse Feder, on which he describes himself as "Director of International Trade and Intellectual Property for the Business Software Alliance". The BSA, of course, is the organization infamous for it's many ridiculous, wildly inaccurate and just plain untrue public statements.

Now, interesting is the fact that at the time the link was given, it wasn't publicly accessible from that website (and hadn't been for some time) except by knowing the internal URL due to broken links. (This has since been corrected, but it was the case at the time). In other words, someone couldn't just browse to find it.

So, how did the poster obtain knowledge of the URL? One very possible explanation is that the anonymous poster giving it was none other than the BSA's Jesse Feder himself, concealing his identity while trolling the forum here. In that case, it is no wonder then that he was so quick to use it and so defensive of it.

So, what was the original source of that document? Was it created by Mr. Feder himself? And is the supposed law cited still in force today, as he seems to claim? Or was it repealed, overturned, replaced, superseded or otherwise rendered ineffective? Those are questions Mr. Feder apparently chose not to answer. No wonder. Just consider the source.

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Let's look at that citation a little more closely, shall we?

The referenced document is on the personal website of one Jesse Feder, on which he describes himself as "Director of International Trade and Intellectual Property for the Business Software Alliance". The BSA, of course, is the organization infamous for it's many ridiculous, wildly inaccurate and just plain untrue public statements.

Now, interesting is the fact that at the time the link was given, it wasn't publicly accessible from that website (and hadn't been for some time) except by knowing the internal URL due to broken links. (This has since been corrected, but it was the case at the time). In other words, someone couldn't just browse to find it.

So, how did the poster obtain knowledge of the URL? One very possible explanation is that the anonymous poster giving it was none other than the BSA's Jesse Feder himself, concealing his identity while trolling the forum here. In that case, it is no wonder then that he was so quick to use it and so defensive of it.

So, what was the original source of that document? Was it created by Mr. Feder himself? And is the supposed law cited still in force today, as he seems to claim? Or was it repealed, overturned, replaced, superseded or otherwise rendered ineffective? Those are questions Mr. Feder apparently chose not to answer. No wonder. Just consider the source.

LOL! I got the link from another website that linked to it. If you want to read what's in the Act, look it up yourself. I believe that the same Act made aiding and abetting a criminal offense as well. How do I know that? Well, I read that in a law review article a few months ago. Am I going to cite EVERYTHING in a way that's satisfactory to you? No, because I don't have time to cite every single thing I say. You do realize that this is just the comments section on some website and not a court of law, right? And I have noticed that you actually haven't refuted what I claimed, which is that the Act criminalized violation of the performance right.

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You're a rapist and murderer. I read that somewhere a few months ago. Am I going to cite EVERYTHING in a way that's satisfactory to you? No, because I don't have time to cite every single thing I say. It's not up to me to prove my claims, it's up to you to disprove them.

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The page on Jesse Feder's site is a scan of "Copyright Enactments of the US, 1783-1906". You can compare it to the Google Books version if you think it was created by Feder.

Or, if you think Google Books is in on the conspiracy, you can look at the University of Cambridge's scan of the Copyright Act of 1897, taken from the US Statutes at Large.

I don't know the guy, but I'm aware of his site, as are others. For example, here's an article from the Wake Forest IP Law Journal (PDF) that cites to it. And nowhere on the site is it claimed that the 1897 Act is still in force today.

Thanks, Terry. You probably guessed already, but I got that link from you. :)

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The page on Jesse Feder's site is a scan of "Copyright Enactments of the US, 1783-1906". You can compare it to the Google Books version if you think it was created by Feder.

Thanks for providing a more reliable source. And speaking of Google, it's interesting to note that the page on Feder's site isn't indexed, lending further credence to the supposition that the anonymous poster above may have been Feder himslef. It seems that others would more likely reference some of the sources that could be found by searches instead.

if you think Google Books is in on the conspiracy, ...blah blah blah... And nowhere on the site is it claimed that the 1897 Act is still in force today.

The original commenter said "...infringing the public performance right has been a crime since 1897" and then cited that website to support that claim. No one said that claim was made directly on the site. Nor do I see anyone claiming a conspiracy. Wow, two intellectually dishonest straw man arguments in one short post. Oh, wait, I see you're a copyright lawyer and advocate. Typical.

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I'd also like to point something else out. The sites that Rojadirecta linked to, did not offer downloads of any content; they offered streams of that content.

Heh, you seem to think some fundamental technical difference exists between the two that doesn't. Most "streaming" schemes actually save the information to the hard drive in the process. And, conversely, there are media players that will preview a file as it "downloads". The main difference is that streaming is a more simplified, automated process for the user.

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Heh, you seem to think some fundamental technical difference exists between the two that doesn't.

Whatever the technological similarities, the law certainly makes that distinction. Streaming is a "public performance," covered under 17 USC 106(4), whereas downloading is "reproducing the work in copies," covered under 17 USC 106(1). They are totally different under the law; for example, streaming sites (Netflix, Pandora, etc) do not have to pay reproduction ("mechanical") royalties, while iTunes and Amazon do.

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Whatever the technological similarities, the law certainly makes that distinction.

And that's the point.

Courts and the law have said all kinds of things: That the Earth is flat, that pi = 3, that the sun orbits the earth, that witches float, that black and white people are fundamentally different and many more. Did any of these legal proclamations make any of that actually true? There were those who claimed that despite the "technicalities" involved, those things were true because courts or "the law" said so.

I, on the other hand, say that those things were never true, despite what any court or law said. In fact, I would say that courts and laws saying such things loose credibility. I guess we'll just have to disagree on that.

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Whatever the technological similarities, the law certainly makes that distinction.

And that's the point.

I'm actually not sure what point you're making. But I do agree with the courts that streaming is totally different than downloading.

I'm not the only one, and in fact I get the distinction from the FSF. Streaming means that you only pay for "access" to the content, and you have no possibility of "owning" that content. Streaming is a license, and downloading is ownership.

That is, of course, why labels are moving to streaming their content. They're just biding their time until they can get better deals with Netflix than they can with iTunes.

I really hope that the "Cloud"(tm) doesn't move in the "streaming" direction, but I think it will. The "cultural" (i.e. moneyed) interest against ownership are vast. It will likely win in the short run.

Whether it wins in the long run depends on the courts - since they are the ones who decide whether a new technological advance is "infringing" or not. Sad, but true.

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I'm actually not sure what point you're making. But I do agree with the courts that streaming is totally different than downloading.

The point was that they're technically the same, even if courts try to claim otherwise. If you're claiming that that they're technically "totally different" then you're technically ignorant regardless of what a judge said.

I'm not the only one, and in fact I get the distinction from the FSF. Streaming means that you only pay for "access" to the content, and you have no possibility of "owning" that content. Streaming is a license, and downloading is ownership.

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For only one of many, many examples, see U.S. v. ASCAP, In the matter of Applications of RealNetworks, Inc., Yahoo! Inc.: "The Internet Companies' stream transmissions, which all parties agree constitute public performances..."

Read that carefully. That's not the court finding that streaming and downloading are technically different. That's just the court accepting that the litigants both claim it is.

A similar situation could occur if both litigants in a case, for whatever reason, agreed that the Sun sets in the East. If both litigants agreed on that point, then the court would have no basis to reject it and would be obliged to accept it. It would NOT mean, however, that the court actually found that the Sun does set in the East or that scientists everywhere must then accept it as fact as well. Big difference.

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Except that none of the Government's paperwork even make this claim. It's not claimed in the seizure warrant, it's not claimed in their opposition memorandum, it's not claimed in any of the other seizure warrants, and none of the people in ICE or the DOJ have stated such a claim either in public or in their Congressional testimony. Thus far, their claim rests entirely on the allegation that the seized sites were directly infringing.

They've been arguing from the get-go that it's forfeitable because it's property used or intended to be used to commit or facilitate the commission of criminal copyright infringement. I agree that they haven't shown that anyone's actually committing crimes with the property. That still leaves open the argument that it's intended to facilitate criminal infringement. But even that's a stretch, since I think they can show that it's intended to facilitate infringement, but not criminal infringement.

Furthermore, it would be very difficult to prove that the website was used in the commission of direct infringement, since none of the infringing material passed through their servers.

Agreed. They can't prove direct infringement. But they probably can prove that it facilitated or was intended to facilitate direct infringement, and that makes it forfeitable so long as that direct infringement is criminal (which I question if they can prove).

Lack of first amendment mention...

...Maybe they don't bring up the whole 1st Amendment thing because they are rather consistently arguing that all of this takes place outside the United States, where US law (and presumably, by association, the US Constitution)doesn't apply. By claiming rights uder the Constitution, they perhaps would be opening up another avenue for trouble.

Re: Lack of first amendment mention...

That's a good point. This case isn't the "best" one to bring the First Amendment argument since the owners of Rojadirecta don't have First Amendment rights (because they're non-citizens). However, there is a very tenable argument that the U.S. users of the site have First Amendment rights, i.e., the right to make speech on the Rojadirecta website as well as the right to receive speech from the site.

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

(Emphasis added.)

You want to argue that the word “Congress” means something different in Article I, Section 1 compared to the word “Congress” in the First Amendment?

Or do you want to argue over the meaning of “legislative powers herein granted”?

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You cannot apply US law on one side of it, and then exclude US law on the other side of it. It has to be an all or nothing. Either they are covered by US law and they can claim rights under that, or they cannot be under US law in which case someone should give them back their damn website.

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Since it's property that exists in the U.S., it matters if it's legal in the U.S.

So you're saying that the specific DNS record was used to commit direct copyright infringement?

Do you have any idea what a DNS record looks like? It is a line or two of text like this:
rojadirecta.com 127.0.0.1

I will buy into the idea that under certain circumstances a linking site can be found under the law to be committing or inducing copyright infringement (not saying that I agree with the law, or with any current copyright law for that matter). You will never be able to convince me that a DNS record can be considered to be doing so - because it is obviously untrue.

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So you're saying that the specific DNS record was used to commit direct copyright infringement?

That's a great point. They seized a domain name, which is just a record in a database. The code that allegedly infringed or facilitated infringement is on a different server, which is not in the U.S. I think the reasoning for seizing the domain name, though, is that people use the domain name to get to the website where the infringement is facilitated, so that makes it a piece of the puzzle that can be seized.

The forfeiture statute is quite broad in defining what can be seized and forfeited, and it's hard to argue that under the government's theory of the crime, the domain name is not property used or intended to be used to facilitate the crime. I think the domain name and the code on the server itself are sufficiently tied to the crime to make them forfeitable.

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I think the reasoning for seizing the domain name, though, is that people use the domain name to get to the website where the infringement is facilitated, so that makes it a piece of the puzzle that can be seized.

Earlier you argued against seizing a bunch of rental cars if someone intended to use them in a crime because the rental agency's purpose in renting them was not for people to commit crimes. Likewise, Verisign's purpose of selling .com domain names and providing an authoritative root server is not to facilitate crimes.

The DNS record's only purpose is to provide a lookup to translate a site someone already knows about (or has been directed to via another means) into something a computer knows how to find on the internet. I think that's a decent enough argument to show they are not sufficiently tied. Everything related to copyright infringement happened on Roja's or someone else's servers, not the DNS servers.

My phone (or phone number listing in the yellow pages) isn't going to be seized because I made a call to a bookie to commit illegal gambling on it.

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I did misspeak though. A non-citizen has First Amendment rights if they're in the U.S. The owners of Rojadirecta would have First Amendment rights if they were here. But since they aren't in the U.S., and neither are their servers, they don't have First Amendment rights.

This is why even Rojadirecta is arguing that it's their users' First Amendment rights at issue, not theirs.

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Now, as for the surprise that First Amendment issues aren't being raised at all in the filing (especially since the judge on Friday specifically noted that Puerto 80 could raise such issues in this very filing). The only thing I can figure is that since this is the lawsuit over forfeiture, rather than the seizure, the First Amendment issue is moot. That is, prior restraint only occurs when there's a restriction on speech before it's deemed illegal. At this stage of the legal fight, they're arguing over whether or not the speech is legal or not, so there's no First Amendment issue to be argued. But, even then I'm not entirely sure, since even the judge suggested the First Amendment issues could be raised at this stage of the game. Either way, I'm surprised.

I don't think it's moot at all, and I think now is the time to argue the First Amendment issue. I seriously doubt that Puerto 80 is just going to let the prior restraint issue go, so I can only assume they have some other plan in mind for bringing this argument. Perhaps a separate lawsuit, an amended motion, a counterclaim, or something like that. But, yeah, it's totally weird that the judge even invited them to raise the issue in their motion to dismiss, and yet they didn't. I don't get it. I'm sure once they do actually bring the argument, though, their strategy will become apparent.

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I suspect it has more to do with the ridiculous ruling last week in which the judge as much as stated that he doesn't believe the speech on their site is protected and used that as an excuse to ignore their other arguments.

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I suspect it has more to do with the ridiculous ruling last week in which the judge as much as stated that he doesn't believe the speech on their site is protected and used that as an excuse to ignore their other arguments.

But he didn't rule that there's not a First Amendment issue, so the issue is very much alive. And he's saying now that he's open to the argument at this point. He just wasn't open to it in determining if there's a "substantial hardship."

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No. The first amendment is US Law. They are arguing that US law does not apply here because everything happened outside the US. To then try to argue that US law APPLIES (the first amendment) doesn't make any sense.

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No they still don't have protection of the Bill of Rights because the incident they are going to court for occurred whilst outside the territory of the USA.

The same way that US citizens outside of the territory of the USA have no ability to quote such things as the 5th, 4th, 1st, and especially the 2nd in defence of their actions within another jurisdiction.

Though whilst within the USA a non resident/citizen has all protections allowed, just not for that specific incident. Remember a breach of one of the "rights' is used as a defence to the incident only.

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As a non-US citizen and having spoken to a fair amount of others who aren't in the USA on this issue, the First Amendment is basically a moot issue since as yourself, them and others have stated, they are not and never have been US Citizens and are therefore not bound by the US Bill of Rights, and also by that Definition any other US Statutes whilst not physically within USA held territories.

If they stated they were bound by the 1st and others, then their other major points would be .. well.. pointless ;)

As for their Users who might be protected by the 1st, well that's a grey area and highly unpredictable in what ramifications it could have on them, especially under the direct infringement claim, or other future allegations like aiding, inducing etc.

Interestingly if they do for some reason lose this round with the DoJ and USA courts, there is absolutely nothing stopping them bringing that to other Nntional (Spain) or International Forums under things like Colour of law, Equity (why us and not google, youtube etc - without fear nor favour ), Detinue, Trover, Conversion, and even contract law (estoppel, privity etc)

Remember most jurisdictions nowadays see the US Courts as overstepping sovereign boundaries, not to mention IP criminal laws as mala prohibita and have no problem (and in fact cherish the ability) in allowing actions to be brought forward against the USG.

So what?

As a cynic when it comes to US law, I say: So what if the DOJ made up some laws? Nothing will come of it. If later some courts decides against them, congress will simply pass a retroactive law allowing their actions. It might be simpler if they just pass a "We Can Do What We Want If We Think It Is Right" law. Of course, they will then have the burden of thinking it is right, but I imagine they'll manage somehow.

If the sites are to be blocked then they should be blocked ONLY in the USA not the rest of the world. I have just done a quick check and rojadirecta.org is up through mafiaa fire and dot com redirects to rojadirecta.es which is the same as the dot net site.on a quick look. I really don't see how a site linking to British and European soccer matches is infringing anything in the USA.

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I think they've already done that, and multiple times, of which the Patriot Act is only one shining example. The government truly believes that they can do what they want if they think is "right". However, the meaning of "right" has the usual Humpty Dumpty connotations, in that it means whatever they want it to mean, no more and no less.

I'm no longer a cynic, but a hardcore realist, which to some might appear cynical, and those to whom it appears so are largely apologists for and/or supporters of the current crop of turds in the government. I've abandoned all hope, and am awaiting the inevitable civil unrest that seems to be this country's destiny. The outcome of that will probably make the French Revolution look like an exercise in restraint and compassion.

setting up a horrible precedent?

Part of we worries they are deliberately setting up the argument this way to create a "clean" precedent. If they expect the judge to go with the DOJ, or even just banking on a long shot, getting a ruling on these arguments in their favour would have massive consequences.

Sure, they will undoubtably be challenged, but perhaps they consider the potential reward worth the risk/work involved...

Sadly for Rojo, they will lose every time on intent. They cannot claim that their system was set up to so X or Y, when it was clearly setup, maintained, and operated to share copyright material (mostly live sports feeds, something incredibly valuable and "scarce"). They can dance on the head of a pin and claim to be an innocent service provider, but in the US they will generally lose on intent.

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Sadly for Rojo, they will lose every time on intent.

Sadly for you, the law being dealt with here says intent doesn't matter.

They cannot claim that their system was set up to so X or Y, when it was clearly setup, maintained, and operated to share copyright material (mostly live sports feeds, something incredibly valuable and "scarce"). They can dance on the head of a pin and claim to be an innocent service provider, but in the US they will generally lose on intent

Again, you focus on intent -- though, as Gwiz points out their intent was clear to be legal in their home country, and that worked out. But the larger point, as I specifically noted in the post, was that this is a debate on a few key legal issues. "Intent" is not one of them.

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While this may be a stretch under current law (I don't know) what will happen is that Roja will be tied up in litigation until Protect IP and Felony Streaming become law and they'll be among the first hammered under those new laws. The former will be used to against their foreign registered domains and we will see what remains of their remaining business.

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While this may be a stretch under current law (I don't know) what will happen is that Roja will be tied up in litigation until Protect IP and Felony Streaming become law and they'll be among the first hammered under those new laws.

So you admit that these laws will be abused to shut down websites perfectly legal in their home countries. You should pipe down about that, because that might look bad to your bosses.

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Mike, I think you are being willfully blind here to some really basic concepts.

Being legal in one country does not mean it is legal in all countries. As an example, it is legal in some countries to possess images of teen girls (under 18) topless in poses made for titillation. As an example, well known 80s pop girl Samantha Fox got her start as a topless page 3 girl in the UK at 16. By US law, those images would be considered child porn. While they are legal in the home country, they would get you arrested if you tried to bring them into the US or publish them.

Further, if you ran a website that marketed to US customers, and allowed them to buy a membership to see such images, you would likely find yourself facing US criminal justice (even if you get tried in absentia).

So let's talk intent. They set up shop in Spain, in part because it has some of the most lax copyright enforcement in all of Europe, and then spread their site all over the world, using servers outside of their jurisdiction, domains registered in another, file storage sites in another. The main site was judged to be legal in Spain only because the content wasn't in Spain, and because Spain does not legally go beyond very, very direct infringement (and even so, often rules for the infringer). Their intent is to set up their structure to be "bulletproof", and were lucky enough to get their main site (which contained no direct infringing material on servers in Spain) judged legal in their own country.

It would be find and dandy if they only offered their service in Spain, and only had their servers and domains in Spain. They did not. Their intention was to spread everything around so they could not easily be pinned in any one country.

The intent is clear: Their site is set up to infringe, and to infringe in a manner that is most difficult to prosecute. They didn't set up a site to trade gardening tips, they set up a site to pirate sports feeds and to share them with the world. Their intent is 100% clear.

Secondary infringment (not the vapid "third party" you try to paint this as) is best explained by intent. In the same manner as someone guiding you to a drug dealer in return for a payment or tip, they set up the same sort of system, knowing exactly what they were trading in. They didn't have links to gardening tips, they had links to only infringing material.

Their intent was to be "legal" in a very narrow way in a single permissive jurisdiction, and then to try to force that permission stand on the rest of the world. They appear to be failing on that regard.

Mike, in the end, can you imagine a world where whatever the "lowest" or most permissive laws is rules the world? Would you accept forced marriages of children, or the growing of poppies for heroin production in the US? Should we allow honor killings, or force all the women to wear the hijab in the US? Should the rulings in places like Iran that make just being a US citizen a crime be enforced in the US?

The whole "legal in Spain" thing is a crock. This is the World Wide Web, not the "World Wide Spain".

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How about you AC, can you imagine a world where whatever the "highest" or lest permissive laws is rules the world? Would you accept forced conscription or the state sponsoring of religion in the US?

You know what's super ironic about this? Many of the examples you cite as 'most permissive' are actually the opposite, they're the least permissive. These:

"Should we allow honor killings, or force all the women to wear the hijab in the US? Should the rulings in places like Iran that make just being a US citizen a crime be enforced in the US?"

These were things we would have to worry about if the least permissive laws ruled the world. So I guess you can imagine it and, strangely enough, you don't seem to like it. Yet that's what you're arguing for, don't operate on the WWW unless you follow the strictest, least permissive laws to the letter.

This whole "illegal in the US" thing is a crock. This is the World Wide Web, not the "World Wide US."

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Mike, I think you are being willfully blind here to some really basic concepts.

By telling you that you're relying on something that isn't in the law? Do tell...

Being legal in one country does not mean it is legal in all countries.

Nor did I say it did. The point was that the US gov't has to show *willful* infringement. And that's made significantly more difficult by the Spanish rulings.

So let's talk intent.

Funny, since you're responding to my post explaining that intent is meaningless. So why do you want to talk about it?

They set up shop in Spain, in part because it has some of the most lax copyright enforcement in all of Europe, and then spread their site all over the world, using servers outside of their jurisdiction, domains registered in another, file storage sites in another

No, it appears they set up shop in Spain, because they're *from Spain*. It also appears that the vast, vast majority of their traffic was from Spain. They didn't do file storage, so I'm not sure what that last statement means. They registered a .com because everyone wants a dot com. I'm not sure the location of their servers, though I thought it was Spain, but I could be wrong on that.

Their intent is to set up their structure to be "bulletproof", and were lucky enough to get their main site (which contained no direct infringing material on servers in Spain) judged legal in their own country.

You have a funny way of judging intent, which again isn't even an issue. You make a bunch of assumptions about the reasons for doing things -- all of which are better explained by the fact that these guys are from Spain.

It would be find and dandy if they only offered their service in Spain, and only had their servers and domains in Spain. They did not. Their intention was to spread everything around so they could not easily be pinned in any one country.

Again I've seen nothing that supports this allegation. Do you have some additional info.

The intent is clear: Their site is set up to infringe

You keep saying this and it doesn't make it any less laughable each time you do. The site is legal in Spain. Why do you keep pretending otherwise. Claiming that it was set up to infringe is clearly false.

Secondary infringment (not the vapid "third party" you try to paint this as) is best explained by intent.

Hahahah. Dude, you look foolish when you comment on laws you know nothing about. "Third party" and "secondary infringement" are the same thing. I realize it may be confusing to the ignorant. But, either way, secondary infringement is not criminal, so it doesn't matter at all in this case. Why do you keep bringing it up? I explained this clearly in the post.

And yet you keep bringing it up.

In the same manner as someone guiding you to a drug dealer in return for a payment or tip, they set up the same sort of system, knowing exactly what they were trading in. They didn't have links to gardening tips, they had links to only infringing material.

Again, that's meaningless. They were not charged with aiding and abetting. So why bring it up? You only look foolish.

Can you actually focus on what the law actually says rather than making up some sort of mythical faux-law in your brain?

Their intent was to be "legal" in a very narrow way in a single permissive jurisdiction, and then to try to force that permission stand on the rest of the world.

Not at all. Look if they violate US laws, that's fine. Charge them under those laws. But this case makes claims under criminal infringement laws which they clearly do not qualify under.

I could see a civil lawsuit against them. But the US gov't shouldn't be involved. I'm not saying that they should be legal all over the world. The only point was that for the single point of willfulness, the gov't has an uphill battle due to the Spanish court ruling.

Mike, in the end, can you imagine a world where whatever the "lowest" or most permissive laws is rules the world?

I never made that claim. I'm not sure how totally clueless and incompetent you have to be to read what I wrote and think that, but you set a new low bar every day, buddy.

The whole "legal in Spain" thing is a crock.

Other than the fact that two courts in Spain said so. And boy does that seem to chap your ass.

This is the World Wide Web, not the "World Wide Spain"

Indeed. But the only reason for bringing up the Spanish rulings was to show willfulness. You seem to be pretending that people are saying anything more than that.

I guess since you seem totally ignorant of the details of this case, that's the best you can do. It's fun though to watch you flail so badly. Keep it up.

Sadly for Rojo, they will lose every time on intent. They cannot claim that their system was set up to so X or Y, when it was clearly setup, maintained, and operated to share copyright material (mostly live sports feeds, something incredibly valuable and "scarce").

Huh? I would venture a guess that their intent was to operate a legal website in Spain. Which they did.

I would also venture a guess that they never even dreamed that the US Government could impose US laws on a entity declared legal in its own sovereign nation.

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Gwiz, it doesn't matter what they intended to do in Spain, the website was available in the US, used by US people, and used a US domain to operate.

Quite simply, what they were doing "in Spain" wasn't just in Spain, it was also "in the USA" and a whole bunch of other places. That website in the US wouldn't stay up 10 minutes.

The Web is an international thing, and sometimes the product you offer up might be illegal in some places. Just like the poker companies are finding, it is perhaps better not to offer your product in countries where it is illegal.

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Right, and the fact that their legality was questionable in Spain should have put them on notice that it would be questionable abroad, like in the U.S., where they happened to register their domain name. When they registered in the U.S., they chose to subject the domain names to U.S. laws.

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The issue appears to be that they aren't being subject to U.S. laws, but extra-judicial action by a state body operating outside the law.

The domain names are registered in the U.S. That makes them subject to U.S. laws. It's not extra-judicial action when the DOJ gets a seizure warrant from a magistrate judge and then later files a forfeiture action. That's the definition of "judicial." They aren't operating outside the law. They're seizing and forfeiting property based on a statute that gives them this express authority.

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Actually, if Libya wanted to, they could have the national registrar revoke the domain in a second (which is one of the risks of using "off brand" TLDs). Actually, most people don't realize that many, many country registries revoke domains on a regular basis because the content on them is not conforming to local law. But Mike tends to ignore that, because it would just be supporting the DoJ actions as a normal part of the way the web works.

The "location" of the domain registration is largely irrelevant. It has nothing to do with the service itself or the users.

I think not. When a person registers a domain name in the U.S., they contractually agree that U.S. law will apply to their domain name, as per ICANN rules. Courts treat domain names as if they are property that exists in the country where they were registered. Even though domain names are just contractual rights, they're property nonetheless.

Baidu has a .com address. Does the doj think they can just seize that, too? Do you agree with them?

I don't know anything about Baidu, but if they're a .com and they violate or facilitate the violation of criminal copyright laws, then yes, they would be seizable and forfeitable under the government's theory. I think the government's theory has holes in it, but that's a different story.

If so, its time for the internet to find a new "main" TLD. If the US plans to be retarded about this crap, let's just not buy .com domains.

If I thought my website might violate U.S. law, I wouldn't register my domain name in the U.S. either.

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The way I look at it is this: Is it something in my estate that I can pass down to my successors? My contractual rights in a domain name are passed down. If I own rojadirecta.org and I die, ownership transfers to my successors.

I take a broad view of what's meant by the word "property" though. I know others define it differently. What's important here though is whether it's the type of property that courts can control, and I think clearly it is. Courts have been controlling domain names for as long as there have been domain names. See, for example, the ACPA: http://en.wikipedia.org/wiki/Anticybersquatting_Consumer_Protection_Act

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If you say so. Not me though. I don't subject myself to Libyan law. And what if you live in one country but register a domain with a registrar in another country and the laws of the tow countries conflict? One requires you to do something that the other prohibits? You obviously can't obey both.

I think not. When a person registers a domain name in the U.S., they contractually agree that U.S. law will apply to their domain name, as per ICANN rules.

And there is no evidence that Rojadirecta violated US law as US law does not apply in Spain.

If I thought my website might violate U.S. law, I wouldn't register my domain name in the U.S. either.

Umm, you're aware that the root domain name servers for the entire internet are located in the US, aren't you?

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It means that since I chose to use bit.ly for shortening links, those links I'm using through the bit.ly service could potentially be affected by Libyan law. How could they not be?

If you say so. Not me though. I don't subject myself to Libyan law. And what if you live in one country but register a domain with a registrar in another country and the laws of the tow countries conflict? One requires you to do something that the other prohibits? You obviously can't obey both.

If you use bit.ly, then you're doing something that could be affected by Libyan law. Pretending otherwise is silly.

And there is no evidence that Rojadirecta violated US law as US law does not apply in Spain.

That's nice, but it's not the issue. The issue is whether the domain names are forfeitable, i.e., whether they are used or intended to be used to commit or facilitate the commission of criminal infringement.

Umm, you're aware that the root domain name servers for the entire internet are located in the US, aren't you?

That's irrelevant. The issue here is domain names. Courts have been treating domain names as property located in the district where the registrar is for as long as there have been domain names.

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It means that since I chose to use bit.ly for shortening links, those links I'm using through the bit.ly service could potentially be affected by Libyan law. How could they not be?

Which isn't what you said. It seems that you're backpedaling now. You stated that using bit.ly made you subject to Libyan law, but now you're saying something different. ("Links", by the way, aren't beings and have no will of their own.) I thus conclude that you're full of it. Strike one.

That's nice, but it's not the issue.

Even though you presented the supposed violation of US law as being the issue. Now you say it isn't. Strike two.

That's irrelevant. The issue here is domain names. Courts have been treating domain names as property located in the district where the registrar is for as long as there have been domain names.

Domain name servers are irrelevant to domain names? He who controls the domain name server ultimately controls the domain name. Yep, you're full of it. Strike three and you're outta there.

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Sigh. There's no need to be so childish.

Which isn't what you said. It seems that you're backpedaling now. You stated that using bit.ly made you subject to Libyan law, but now you're saying something different. ("Links", by the way, aren't beings and have no will of their own.) I thus conclude that you're full of it. Strike one.

I'm sorry if you think I'm backpedaling. I think what I've said is consistent. If I use bit.ly to shorten a link, then I'm subject to Libyan law vis-a-vis the service I used, since that service is in Libya.

Even though you presented the supposed violation of US law as being the issue. Now you say it isn't. Strike two.

You said: And there is no evidence that Rojadirecta violated US law as US law does not apply in Spain.

I responded: That's nice, but it's not the issue. The issue is whether the domain names are forfeitable, i.e., whether they are used or intended to be used to commit or facilitate the commission of criminal infringement.

Explanation: Whether or not the owners of Rojadirecta violated the law is not the issue. The issue is whether the property is forfeitable, and that turns on whether it's used for infringement. When you said there is "no evidence that Rojadirecta violated US law," I assumed you were talking about the owners of Rojadirecta. If so, it's immaterial. They're not on trial. The property is.

Domain name servers are irrelevant to domain names? He who controls the domain name server ultimately controls the domain name. Yep, you're full of it. Strike three and you're outta there.

What is relevant is that domain names are property that can be controlled by the courts. Not even Rojadirecta is arguing that they're not.

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It was a civil trial both times, and as you full well know if you have the money and fortitude anyone can bring any matter to a court as long as the court sees some merit in providing a judgement, or in these cases providing guidance on why it was a fundamentally flawed suit to begin with.

Just because someone says "you are in my opinion committing an unlawful act and I will try to prove it in court" Does NOT mean you need to consider the rest of the freakin planets legislations just because you won! Otherwise suing that same weird logic US citizens better be concerned with Australian and European gun laws if any AUS/EU citizens get injured by weapons whilst within the USA! *shakes head to rid self of logic anomaly *

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There! That's the ticket! You're arguing that since their domain name was registered in the U.S., they're subject to U.S. law. Either its true or it isn't
If it is true, then they are subject to the laws that actually exist. The laws that exist say that was happened here is illegal i.e. the DOJ taking their website.
Or it isn't true, and the DOJ again has no standing here.

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So, what, you shouldn't setup a website at all, because it might be illegal somewhere? Good grief, why is there an internet at all? Everything on it runs afoul of some law somewhere, so why the fuck?

I don't buy it. The US thinks it can impose its laws the world over. Guess what? All they are doing it directing traffic to these sites because before they started this little charade, I didn't know half these sites with domains they seized existed. So how the fuck?

Thanks DOJ. I use Torrent-finder for almost every torrent search I do now. THanks DOJ, I now know I can find sports on the internet through Rojadirecta. So, hows that working out for you?

Oh, and don't let me use the name Mohammed in vain, I might piss off a religious sect I am not a member of. Guess I should be wiped off the internet for even mentioning his name.

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Gwiz, it doesn't matter what they intended to do in Spain, the website was available in the US, used by US people, and used a US domain to operate.

Umm. You said "they will lose every time on intent" and I disagree with you. As far I as I can tell the intent was to provide a legal website in Spain.

The whole "where the website is available" is a really, really dumb stance in this the age of the internet. That's a can of worms I wouldn't even think you would want to open. Pretty much everything is illegal somewhere - including the legitimate products from the entertainment industries.

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Nope, their intent was to operate a website in a manner that would not be considered illegal by extremely lax Spanish standards (remember the Nintendo rulings?), knowing full well that the site would be considered illegal almost everywhere else. They could profit from that position, being "bulletproof" at home, and thus being able to thumb their collective noses at every other more stringent jurisdiction.

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Just how do you know what their intent was?

It seems you're suggesting that anytime a company adheres to laws in its own country, and those are more "lax" (a subjective assessment) than other countries, then they obviously do it because it would be illegal anywhere else. That's absurd logic.

That's like saying that in taking advantage of Rights in the US, say free speech, that are not available in many other countries, we are doing it because it would illegal elsewhere. Do you really think like that?

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May the Islamic Prophet Muhammed burn in hell, because he was a pedophile when he married that nine year old girl.

There. My statement just insulted Islam. Which is illegal in several Islamic countries. Which carries a penalty of death.
However, the statement was said in two countries with free speech laws (one, the country where I live, the other, this website, which is based in the U.S., which has the famous First Amendment).
Still think this website is now illegal, because of my action?

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Actually, if the website was made up almost entirely of such comments, it is likely that (a) the website wouldn't be accessible in many countries, and (b) that Mike Masnick would likely not want to travel to the middle east as a result.

He might end up in jail, or he might be subject to other, ummm, punishments as a result.

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Made Up Law

At this point, the only way the government wins is if the court either does not understand what the law actually says, or effectively pretends that the Justice Department's made up law exists, which it is expressly not allowed to do.

I don't know what makes you think they can't pretend. Judges make up pretend laws all the time. It's one of their favorite things to do.

Dear Mr. Blue Snowflake

I understand what you're saying and it's based on the PRO-IP Act Of 2008's amendments to forfeiture law. But what about the Fourth amendment to the Constitution? People are supposed to be protected from "unreasonable searches and seizures". At least in this case the courts should see that seizing and forfeiting property only indirectly connected to a crime would all but destroy the Fourth Amendment. It's why the DOJ is only trying to prove RojaDirecta was directly connected to a crime, but based on the evidence and previous case law that would be a stretch.

Re: Dear Mr. Blue Snowflake

Actually I myself don't see the relevance of the Fourth amendment to the Constitution in this case since this is to do with property only and not people since the people(owners) were not US citizens, nor within USA territory.

There are other laws (treaties) that do protect them though and the US DoJ are upholding them ...at the moment.. mainly because they are procedural rules to do with administration of justice within the courts themselves.

Re: Dear Mr. Blue Snowflake

I understand what you're saying and it's based on the PRO-IP Act Of 2008's amendments to forfeiture law. But what about the Fourth amendment to the Constitution? People are supposed to be protected from "unreasonable searches and seizures". At least in this case the courts should see that seizing and forfeiting property only indirectly connected to a crime would all but destroy the Fourth Amendment. It's why the DOJ is only trying to prove RojaDirecta was directly connected to a crime, but based on the evidence and previous case law that would be a stretch.

I don't know if I'm "Mr. Blue Snowflake" since these avatars change everyday (I think), but I'll assume you were talking to me.

I agree that you could argue the seizures are "unreasonable" and therefore violative of the Fourth Amendment, but I don't think it's a winning argument. Seizing property based on probable cause that it's being used or intended to be used to commit or facilitate the commission of a crime seems hardly unreasonable. And about two centuries of jurisprudence backs it up. Nor do I think the property is as indirectly involved as you seem to think. I don't think this part of the government's theory is a stretch. I have problems with other parts of the government's theory, but not this.

In Marcus v Search Warrant, Mr Justice Brennan characterized that English case, "one of the land-marks of English liberty", in the following words:

This history was, of course, part of the intellectual matrix within which our own constitutional fabric was shaped. The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression. For the serious hazard of suppression of innocent expression inhered in the discretion confided in the officers authorized to exercise the power.

“The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.”

Two centuries.

You can parse and gloss each word of each and every amendment, imbuing all with their own line of cases and decisions. But when you read the document as a whole, in the context of our history, then you must conclude: A seizure which works a prior restraint on the press in violation of the first amendment, is also an unreasonable seizure within the prohibition of the fourth.

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I agree that there may be First Amendment problems with these seizures. But that's different than what I thought we were talking about, which is the general notion of reasonableness of seizures of property thought to be used for crime. I'm bummed the First Amendment issue hasn't been hashed out yet. I'm anxious for the resolution of that issue. I still don't get why Rojadirecta didn't raise the argument in their motion to dismiss after the judge even invited them to do so.

But, since Rojadirecta has not violated a single US law, their property cannot be forfeit, even if that property was "used" by someone else to commit a crime. And, even if Rojadirecta did violate some US law, it's not one that can ever end up being connected to the forfeiture statutes. Last, if someone else committing a crime would allow forfeiture, the Justice Department still hasn't proven that anyone has broken any US law.

The government needs to prove by a preponderance of the evidence that the domain names are "any property used, or intended to be used, in any manner or part to commit or facilitate the commission of" criminal copyright infringement. So if the domain names are facilitating criminal infringement, they may be forfeited. It doesn't matter if the owners of Rojadirecta are criminals or not.